Rebutting Ethos and Pathos in Legal Writing (by MATTHEW SALZWEDEL)

Rebutting Ethos and Pathos in Legal Writing

The next time you read legal writing that defies logic, recall the Greek philosopher Aristotle.

Aristotle said that rhetoric is “the faculty of observing in any given case the available means of persuasion.” The first means of persuasion “depends on the personal character of the speaker [ethos]; the second on putting the audience into a certain frame of mind [pathos]; the third on the proof, or apparent proof, provided by the words of the speech itself [logos].” (Rhetoric, Book I, ch. 2).

Smart lawyers rely on logos—appeals to logic or reason—in their legal writing because it’s the most persuasive form of rhetoric in legal argument. Indeed, as retired Third Circuit Judge Ruggero Aldisert put it: “Logic is the lifeblood of American law.”

Lawyers also sometimes rely on ethos (appeals to the speaker’s reputation, character, credibility, or authority) and pathos (appeals to the audience’s emotions, motivations, self-interest, or biases). But although they’re perfectly acceptable as rhetorical devices, ethos and pathos are logical fallacies, making them liabilities to persuasive legal writing. Here’s how to spot ethos andpathos in legal writing, and how to rebut them.

Rhetorical Logos

Logos takes two distinct forms: inductive and deductive reasoning. Persuasive legal writing is anchored in deduction or induction. So what do these terms mean?

Inductive Reasoning

Inductive reasoning is the process of setting forth similar examples, and asking the audience to draw a conclusion from those examples. In Logic: An Introduction, Robert Paul Churchill defines an inductive argument as:

one for which it is claimed that the premises, if they are true, increase the probability that the conclusion is true as well. . . . [I]nductive inference is an information-extending process; one starts with a set of particular observations or known facts and infers some conclusions about an entity or an event that has not yet been experienced.

Here’s an example of inductive reasoning:

All the lawyers I know who work at law firms attended law school (major premise).

Paul works as lawyer at a law firm (minor premise).

So Paul probably attended law school (conclusion).

This is an example of inductive reasoning because we cannot conclusively establish that Paul went to law school even if we accept that he works at a law firm. Paul, for example, might have lied to his law firm about going to law school, and the firm didn’t verify his educational background. So based on the major and minor premises, we can only conclude that Paul probablywent to law school.

Deductive Reasoning

Deductive reasoning establishes the audience’s agreement with major and minor premises (including premises that are unstated but nonetheless accepted, which are called enthymemes), and then asks the audience to draw a definitive conclusion. Stated another way, if the audience accepts the major and minor premises as true, it must also accept the conclusion as true.

A famous example of deductive reasoning, which Nena Street repeated here in Use Logic to Win Arguments: A Primer for Lawyers, is the following syllogism:

All men are mortal

Socrates is a man

So Socrates must be mortal.

If the audience accepts the truth that all men are mortal, and also accepts the truth that Socrates is a man, the audience must accept the conclusion that Socrates is mortal.

Rebutting arguments based in ethos

Most legal arguments based in ethos are implied.

For example, when an appellate judge retires and joins a private firm, and the firm later employs the retired judge to brief an appeal to his former colleagues, the firm is partly trying to persuade the court that it should decide the case in the firm’s favor because of the retired judge’s established reputation, character, and credibility. Former Minnesota Supreme Court Chief Justice Eric J. Magnuson fits this example on the state level (though his lawyering skills also are beyond repute).

To a lesser degree, a litigant can make an implied ethos-based argument if it hires a seasoned advocate with well-established credibility with the court. Former Solicitor Generals Ted Olsonand Paul Clement are two examples on the national level.

Though arguments based in ethos are, by definition, not grounded in deductive or inductive logic, it’s difficult to rebut them because to do so you have to suggest to the court that it will be influenced by the character or reputation of the lawyers arguing the case. But if you decide to take this risk, writing something like this might do the job, if done delicately:

Although Mr. Clement has successfully argued many cases before this Court, his task here would have been easier if he could have relied on the Court’s long line of cases that support my client’s case.

Rebutting arguments based in pathos

Although arguments based in ethos often are implied, arguments based in pathos usually aren’t subtle. In fact, they might be intentional. Arguments based in pathos commonly take the form ofnon-sequiturs—also known as fallacies of irrelevance. Churchill describes a fallacy of irrelevance as:

[A]n argument in which the premises are irrelevant to the conclusion, the relationship between them being based on attitudes, feelings, or impressions created by the premises rather than on information that offers relevant reasons for believing that the conclusion is true.

Fallacies of irrelevance include:

• Ad hominem (personal attack), which includes abusive and circumstantial ad hominem(Example: “He shouldn’t win because he’s a bad person.”).
• Tu quoque (you’re another) (Example: He shouldn’t win because he did the same thing.”).
• Prejudicing the issue (including poisoning the well) (Example: Nietzsche: “Those who disagree with me when I say that mankind is corrupt prove that they are already corrupted.”).

But two other fallacies of irrelevance are mirror-images of pathos: appeals to emotion (including appeals to fear, pity, or sympathy) and appeals to tradition, or ad verecundiam fallacies.

Appeals to emotion and tradition defined

Churchill says that appeals to emotion can be subcategorized into appeals to fear (argumentum ad baculum); appeals to pity (argumentum ad misericordiam); and appeals to sympathy or to the people (argumentum ad populum).

Appeals to emotion arise when a person “instead of presenting evidence for a conclusion, attempts to win approval for it by playing upon the feelings of those to whom the argument is addressed.” And appeals to tradition are “argument[s] in which rituals or customs of the past are offered to justify claims about what should or should not be done in the present. Precedent is substituted for reason.”

With both appeals to emotion and appeals to tradition, then, deductive and inductive reasoning is discarded for appeals to the audience’s present feelings or society’s past rituals.

Rebutting appeals to emotion: The cases of international and social justice

In the law, appeals to emotion are ubiquitous. A common example is the little-guy-versus-big-corporation argument (appeals to pity or sympathy):

Mr. Jones doesn’t dispute that he didn’t pay his mortgage; but he couldn’t pay because he recently lost his job. In any event, the bank is so big that it won’t even notice if Mr. Jones gets a few more months to get current with his payments.

True, this might be the only argument Mr. Jones’s lawyer can make, and it doesn’t mean that the lawyer’s appeal to the court’s emotions and sympathies isn’t rhetorically persuasive. But if you’re representing the bank, the rejoinder is:

Despite Mr. Jones’s financial circumstances, he doesn’t dispute that he failed to pay his mortgage. That’s the only issue before this Court.

Mr. Jones and his late mortgage payments is a simplistic example of an appeal to emotion, and how you can easily rebut it. But other appeals to emotion (especially appeals to pity and sympathy) are more subtle because they get cloaked in nebulous, value-laden concepts.

WHAT’S INTERNATIONAL JUSTICE?

Consider the concept of “international justice.” In Editorial board muddles definition of justice, I noted that the Minnesota Daily had argued in an editorial that the United States should join the International Criminal Court because that deferential act would promote “international justice.”

I argued that by cloaking its value-laden argument in vague concepts of “international justice” and promoting a “just world,” the Daily was attempting to insulate its policy judgment—that the United States should join the International Criminal Court—in an “unassailable moral imperative,” not in logic or reason. In other words, the Daily was playing to its readers’ emotions—their desire for a “just world” in some abstract sense.

SOCIAL JUSTICE? TO WHOM AND FOR WHOM?

Cloaking arguments in social-justice concepts also is an appeal to the audience’s emotions because there’s no consensus about what the term “social justice” means, despite some lawyers’ attempts to unilaterally define its meaning.

For example, Austrian economist and political philosopher F.A. Hayek rejected the usefulness of the term “social justice” if a person uses it to justify government’s pre-determined redistributive policies. Hayek’s view, generally speaking, was that the results of market processes were morally neutral—neither socially unjust nor socially just. In contrast to Hayek, however, political philosopher John Rawls, in A Theory of Justice, generally argued that government promotes “social justice” when it implements pre-determined redistributive policies—his so-called ”justice-as-fairness principle.”

In the narrower legal context, this Hayekian-Rawlsian debate usually manifests itself inarguments about whether the law should protect “negative rights,” that is, protect persons from government encroachment on their inalienable rights—like private property and free exercise of religion, or whether the law should foster “positive rights,” that is, promote the rights of people to receive tangible things like free health care or housing under the auspices of equal treatment under the law.

In any event, neither Hayek nor Rawls could argue their case for “social justice” in particular cases using deductive or inductive logic because the major premise of their arguments—the meaning of the term “social justice”—isn’t sufficiently accepted. Indeed, in his seminal The Mirage of Social Justice, Hayek acknowledged that his view of the meaning of “social justice” was “one which by its very nature cannot be proved. A negative assertion never can.”

So if you see your opposing counsel supporting an argument with an appeal to “social justice,” a simple rebuttal would be:

Mr. Brown argues the Court should rule in his favor because that would be the socially just result. But he doesn’t claim there’s agreement among the courts or even society in general about what would be the socially just result here. That’s because there is no agreement. The Court should decide the case based on established law, and the law says Mr. Brown’s claims have no merit.

Rebutting appeals to tradition: The case of same-sex marriage

No less troublesome than appeals to emotion are appeals to tradition. Churchill gives an example of an appeal to tradition that’s particularly relevant to the emotion-riling contemporary debate over whether states should recognize same-sex marriage:

The institution of marriage has lasted as long as men and women have sought to honor their God. Indeed it is as old as the history of civilization itself. Thus marriage must be considered sacred.

Though rhetorically sound, this reasoning also is logically fallacious because, without additional reasons for maintaining the sanctity of marriage, the argument for recognizing only opposite-sex marriages is supported only by tradition.

The United States Court of Appeals for the First Circuit recognized this appeal to tradition in its May 21, 2012 decision striking down the Defense of Marriage Act:

Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity—not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. . . . But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

Be ready to pounce on ethos and pathos

Because lawyers are committed to equal treatment under the law, they generally strive to cabin their legal arguments in logos—deductive and inductive reasoning, grounded in generally accepted premises. Lawyers’ commitment to this bedrock of logic ensures that the U.S. legal system remains one of ”laws and not of men.” Lawyers leave the politicians to peddle in appeals to emotions, feelings, sympathies, and traditions.

So if an opponent argues that the “little guy” (or “good corporate citizen”) should win merely because of their unique circumstances; or that a particular decision will promote”social justice”; or that the judge should decide the case in a particular way because “that’s the way things always have been done,” you now have the knowledge and tools to rebut these fallacies of irrelevance. And somewhere, Aristotle will smile.

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